Topic: What witnesses really need
Topic in Syllabus: General Studies Paper 2: Indian Judiciary
With two recent developments, some crucial questions relating to witnesses came to the surface. First, the Supreme Court (SC), while hearing a PIL in Mahendra Chawla and Ors, approved the Centre’s draft Witness Protection Scheme (WPS). Second, all accused in the Sohrabuddin case were acquitted. In the latter, 88 witnesses out of a total of 212 who were examined by the court turned hostile.
More about on news:
- The SC has asked the states to implement the WPS till Parliament comes out with legislation in this matter. In principle, this measure is laudable.
- However, the scheme falters with respect to the core concerns and issues that witnesses face in their day-to-day interactions with the courts.
- The draft scheme, prepared by the National Legal Services Authority (NALSA) and Bureau of Police Research and Development (BPRD), does not seem to be premised on any empirical study and, therefore, the deeper insights about the varied sufferings and consequences of being a witness remain unaddressed.
- The core of the WPS remains the security to witnesses. An almost crude estimate suggests that not more than 20 per cent of all witnesses require this kind of a protection measure.
- In cases involving terrorist acts, organised crime and powerful people with connections and resources, there may be a dimension of security.
- However, a vast majority of cases in the lower courts wherein witnesses refuse to be present or become hostile involve certain other factors which need to be appreciated.
Need of Witness Protection Scheme:
- In a society governed by a Rule of Law, it is imperative to ensure that investigation, prosecution and trial of criminal offences is not prejudiced because of threats or intimidation to witnesses.
- The need to protect witnesses has been emphasised by the Hon’ble Supreme Court of India in “Zahira Habibulla H. sheikh and Another v. State of Gujarat” 2004 (4) SCC 158 SC.
- While defining Fair Trial, the Hon’ble Supreme Court observed that “If the witnesses get threatened or are forced to give false evidence that also would not result in fair trial”.
- In 1958, the 14th Report of Law Commission indicated about the need to protect witnesses. The 4th Report of the National Police Commission, 1980 also dealt with the said subject.
- In 154th Report (1996) The Law Commission dealt with the plight of the witnesses. The report spelt out the inconvenience and the lack of facilities and the threat from the accused to the witnesses.
- The 172 and 178th report also dealt with the said subject and recommended that witnesses should be protected from the wrath of the accused in any eventuality.
- The Hon’ble Supreme Court also repeatedly observed about the importance to give protection to witnesses.
- In complex cases, where cooperation by a witness is critical to successful prosecution of a powerful criminal group, extraordinary measures are required to ensure the witness’s safety viz. anonymity, relocation of the witness under a new identity in a new, undisclosed place of residence.
- At present there is no law/scheme holistically at the National level for protection of witnesses.
- Keeping in view the said scenario, “Witness Protection Scheme, 2018” has been drafted/devised by NALSA & BPR&D.
Aims & Objective:
- The ability of a witness to give testimony in a judicial setting or to cooperate with law enforcement and investigations without fear of intimidation or reprisal is essential in maintaining the rule of law.
- The objective of this Scheme is to ensure that the investigation, prosecution and trial of criminal offences is not prejudiced because witnesses are intimidated or frightened to give evidence without protection from violent or other criminal recrimination.
- It aims to promote law enforcement by facilitating the protection of persons who are involved directly or indirectly in providing assistance to criminal law enforcement agencies and overall administration of Justice.
- Witnesses need to be given the confidence to come forward to assist law enforcement and Judicial Authorities with full assurance of safety.
- It is aimed to identify series of measures that may be adopted to safeguard witnesses and their family members from intimidation and threats against their lives, reputation and property.
Law Commission of India has recommended that witnesses should be protected from the wrath of the accused in any eventuality. As such witnesses should be entitled to the following rights:
- Right to give evidence anonymously
- Right to protection from intimidation and harm
- Right to be treated with dignity and compassion and respect of privacy
- Right to information of the status of the investigation and prosecution of the crime
- Right to secure waiting place while at Court proceedings
- Right to transportation and lodging arrangements.
It has three categories of witnesses based on the threat perception:
- Category ‘A’: Where the threat extends to life of witness or his family members and their normal way of living is affected for a substantial period, during investigation/trial or even thereafter.
- Category ‘B’: Where the threat extends to safety, reputation or property of the witness or his family members, only during the investigation process or trial.
- Category ‘C’: Where the threat is moderate and extends to harassment or intimidation of the witness or his family member’s, reputation or property, during the investigation process.
Scope of the Scheme:
- Witness Protection may be as simple as providing a police escort to the Courtroom, offering temporary residence in a safe house or using modern communication technology (such as video conferencing) for recording of testimony.
- In other more complex cases, where cooperation by a witness is critical to successful prosecution of a powerful criminal group, extraordinary measures are required to ensure the witness’s safety viz. anonymity, relocation of the witness under a new identity in a new, undisclosed place of residence.
- Witness protection, especially in its practical operation, must therefore be viewed on a case by case basis in meaningful assistance to the witnesses.
- Filing of application: The application for seeking protection order under this scheme can be filed in the prescribed form before the Competent Authority as per area jurisdiction along with supporting documents.
- As and when an application is received by the Competent Authority, in the prescribed form, it shall forthwith pass an order for calling the Threat Analysis Report from the Commissioner of Police in Commissionerates/ SSP in District Police investigating the case.
- Depending upon the urgency in the matter owing to imminent threat, the Competent Authority can pass orders for interim protection of the witness or his family members during the pendency of the application.
- The Threat Analysis Report shall be prepared expeditiously by the Commissioner of Police in Commissionerates/ SSP in District Police investigating the case while maintaining full confidentiality and it shall reach the Competent Authority within five working days of receipt of the order.
- In the report, the Commissioner of Police in Commissionerates/ SSP in District Police investigating the case shall categorize the threat perception and shall also submit the suggestive measures for providing adequate protection to the witness or his family as contained in clause 7 of the scheme or any other measure found appropriate.
- While processing the application for witness protection, the Competent Authority shall also interact preferably in person and if not possible through electronic means with the witness and/or his family members/employers or any other person deemed fit so as to ascertain the witness protection needs of the witness.
- All the hearings on Witness Protection Application shall be held incamera by the Competent Authority while maintaining full confidentiality.
- An application shall be disposed of within five working days of receipt of Threat Analysis Report from the Police authorities.
Types of Protection Measures:
The types of Protection measures envisaged under the Scheme are to be applied in proportion to the threat. The same are not expected to go for infinite time, but are expected to be for a specific duration on need basis which is to be reviewed regularly. The measures provided for the protection of the witnesses include the following:-
- Ensuring that witness and accused do not come face to face during investigation or trial;
- Monitoring of mail and telephone calls;
- Arrangement with the telephone company to change the witness’s telephone number or assign him or her an unlisted telephone number;
- Installation of security devices in the witness’s home such as security doors, CCTV, alarms, fencing etc.;
- Concealment of identity of the witness by referring to him/her with the changed name or alphabet;
- Emergency contact persons for the witness;
- Close protection, regular patrolling around the witness’s house;
- Temporary change of residence to a relative’s house or a nearby town;
- Escort to and from the court and provision of Government vehicle or a State funded conveyance for the date of hearing;
- Holding of in-camera trials;
- Allowing a support person to remain present during recording of statement and deposition;
- Usage of specially designed vulnerable witness court rooms which have special arrangements like live links, one way mirrors and screens apart from separate passages for witnesses and accused, with option to modify the image of face of the witness and to modify the audio feed of the witness’ voice, so that he/she is not identifiable;
- Ensuring expeditious recording of deposition during trial on day to day basis without adjournments;
- Awarding time to time periodical financial aids/grants to the witness from Witness Protection Fund for the purpose of re-location, sustenance or starting new vocation/profession, if desired.
Witness Protection Fund:
Under the scheme, there shall be a Witness Protection Fund operated by the Ministry or Department of Home Affairs under the State or Union Territory, from which the expenses of implementation of the Witness Protection Order have to be met. The fund is to be maintained by the States and Union Territories and shall comprise of:
- budgetary allocation made by the Annual Budget presented by the State Government;
- receipts of fines imposed under Section 357 of Code of Criminal Procedure ordered to be deposited by the courts;
- donations and contributions from various charitable trust, philanthropist and individual permitted by the Government;
- Funds contributed under Corporate Social Responsibility.
Drawbacks of the Scheme
Even though the scheme offers a great deal of respite to the witnesses regarding their safety during the continuance of the trial and in exceptional cases even after the trial is complete, but it also suffers from certain flaws such as:
- The functioning criminal justice system is the responsibility of the State and some states may not have adequate resources to implement this scheme effectively. The alternative to this is assistance by the centre but nowhere in the scheme the centre has been entitled to give in a single penny for the Witness Protection Fund;
- the functioning of the Witness Protection Order has been made limited only to three months;
- The task of deciding the contents and preparation of the Threat Analysis Report has been accorded to the head of the police in the district, so in high profile cases involving politicians or influential people the police officer can be put under pressure to provide those people the information regarding the witness.
The Witness Protection Scheme, 2018 (Draft) is a first attempt at the National level to holistically provide for the protection of the witnesses which will go a long way in eliminating secondary victimization. The witnesses being eyes and ears of justice, and play an important role in bringing perpetrators of crime to justice. This scheme attempts at ensuring that witnesses receive appropriate and adequate protection. This will go a long way in strengthening the Criminal Justice System in the Country and will consequently enhance National Security Scenario.
Critically evaluate how the witness protection scheme will bring in efficiency in the criminal justice system, given the abysmal rate of convictions in the country?